Jonathan Martin Gough against Cannons Law Practice and Lee Montague-Trenchard against Cannons Law Practice (Court of Session)

Factual and Procedural Background

This opinion concerns two separate actions brought by former pilots (the Pursuers) against a firm of solicitors (the Defender). Both Pursuers claim to suffer from chronic symptoms, identified as Aerotoxic Syndrome ("ATS"), allegedly caused by exposure to toxic fumes during their employment as pilots. The Defender admitted breach of duty, including a failure to take detailed precognitions within three months of instruction and failure to advise the Pursuers to instruct English solicitors promptly to manage limitation risks. The cases were case-managed and heard concurrently, with extensive evidence over 14 days including factual and expert witnesses.

Legal Issues Presented

1. Whether the Pursuers lost a real and substantial chance to pursue personal injury claims against their former employers due to the Defender's admitted negligence.
2. The assessment of the Pursuers' prospects of success in their underlying claims against their former employers.
3. The application and effect of limitation periods under English law and the law of the UAE.
4. The causation issue concerning whether ATS is a recognized condition and whether the Pursuers' symptoms are attributable to exposure to contaminated cabin air.
5. The legal principles governing loss of chance claims and their application to the present case.
6. The quantum of damages recoverable by the Pursuers, including general damages, loss of earnings, pension loss, and claims for loss of property investment income.

Arguments of the Parties

Pursuers' Arguments

• The Pursuers contend they suffer genuine symptoms caused by exposure to toxic cabin air during their employment as pilots, consistent with ATS.
• The Defender admitted negligence, including failure to take timely precognitions and failure to advise promptly on jurisdiction and limitation risks.
• Had they been properly advised, the Pursuers would have instructed English solicitors, likely Thompsons, and joined collective proceedings in England funded by Unite, thereby having a real and substantial chance of success estimated at around 80%.
• The Pursuers relied on expert evidence supporting the existence of ATS, the mechanism of injury, and the causal link to their symptoms, including toxicology, neuropsychology, and neurology experts.
• They submitted that the court should apply the loss of chance principles as set out in Perry v Raleys Solicitors, assessing the value of the lost chance rather than conducting a full trial within a trial.
• The Pursuers claimed damages including general damages, loss of earnings, pension loss, and losses arising from inability to invest in property.
• They argued that insurance payments received by one Pursuer under an income protection scheme should not be deducted from damages.

Defender's Arguments

• The Defender accepted breach of duty but disputed that the Pursuers lost a real and substantial chance to pursue claims against their former employers.
• The Defender contended the Pursuers’ claims would have been time-barred or had limited prospects of success due to limitation and evidential difficulties.
• The Defender challenged the existence and recognition of ATS as a valid medical diagnosis and disputed causation, relying on expert evidence questioning the toxicological basis and the identification of harmful substances.
• The Defender argued that the Pursuers would have been unable to find suitable English solicitors in time due to the novelty and risk associated with ATS claims.
• The Defender submitted that the claims for loss of property investment income were unsustainable and amounted to double recovery.
• The Defender argued that payments received under the income protection policy were deductible from damages as they represented continuation of salary rather than pension payments.
• In relation to the assessment of loss of chance, the Defender urged a detailed, arithmetical approach to contingencies rather than a broad brush valuation and contended the Pursuers’ underlying claims would have failed on grounds of foreseeability, breach, identification of harmful substances, and causation.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Perry v Raleys Solicitors [2019] UKSC 5	Framework for assessing loss of chance claims distinguishing between matters to be proved on balance of probabilities and those assessed as lost chance.	Court applied the principle to value the lost chance of pursuing claims without conducting a trial within a trial.
Armstead v Royal & Sun Alliance Insurance Company [2024 UKSC 6]	Burden of proof on defender to show break in causation or failure to mitigate.	Court held defender failed to discharge burden to prove break in causation by subsequent advisers.
Dingley v Chief Constable of Strathclyde Police 1998 SC 548	Approach to medical causation in civil litigation, emphasizing balance of probabilities.	Court applied the legal standard distinguishing from clinical proof.
McGhee v National Coal Board [1973] 1 WLR 1	Establishing causation on balance of probabilities in absence of precise mechanism.	Court accepted that exact identification of harmful substance not essential to establish causation.
Smoker v London Fire Authority [1991] 2 AC 502	Deductibility of ill-health pension payments from damages.	Court distinguished between pension payments and income protection; payments received by Pursuer treated as deductible.
Harrison & Another v Bloom Camillin [2001] PNLR 7	Approach to valuation of claims and trial within a trial in professional negligence context.	Court rejected detailed trial within a trial in loss of chance context, emphasizing valuation of lost opportunity.
Holmes v Poeton Holdings Limited [2024] 2 WLR 1029	Divisibility of damages in cumulative exposure conditions.	Court considered ATS as possibly divisible but ultimately assessed divisibility as part of overall causation appraisal.
Wood v Ministry of Defence [2011] All ER (D) 66	Causation and medical consensus in novel injury claims.	Court recognized difficulty in proving causation without medical consensus but did not treat absence as fatal.
Kennedy v Cordia (Services) LLP [2016] WLR 597	Admissibility and weight of expert evidence related to independence and impartiality.	Court admitted expert evidence despite challenges to independence, considering it in weighing evidence.
Mount v Barker Austin [1998] PNLR 493	Approach to assessing lost chances in professional negligence claims.	Court applied a generous approach to assessing prospects of success lost due to solicitor's negligence.

Court's Reasoning and Analysis

The court began by acknowledging the Defender's admission of breach of duty, focusing the inquiry on the consequences of that breach, namely the loss of a chance for the Pursuers to pursue claims against their former employers. The court applied the established legal framework for loss of chance claims, distinguishing between matters the Pursuers must prove on the balance of probabilities (their own actions) and those assessed as lost chances (actions of third parties).

Regarding causation, the court considered extensive expert evidence. It recognized the controversy surrounding ATS, noting it is not a formally recognized medical condition and diagnostic criteria are unvalidated. The court found that, while the Defender's expert raised significant doubts about the toxicological and medical basis of ATS, the Pursuers' expert evidence, particularly that of Professor Howard and Professor Mackenzie Ross, provided a sufficient evidential basis to infer that exposure to contaminated cabin air could have caused or materially contributed to the Pursuers' symptoms.

The court rejected the Defender's argument that the Pursuers could not identify the harmful substances, holding that precise identification was not essential to establish causation in civil litigation. It found that the Pursuers' symptoms and exposure history, combined with expert evidence, were sufficient to support their claims.

On limitation, the court preferred the Pursuers' unchallenged evidence that their date of knowledge arose in 2012 following receipt of test results, concluding that limitation had expired by the time the Pursuers engaged alternative solicitors. The Defender failed to prove that the subsequent solicitors' actions broke the chain of causation.

Regarding the likelihood that the Pursuers would have found English solicitors in time, the court found on balance of probabilities that they would have done so, given their membership of a close-knit group of pilots affected by ATS and the existence of Thompsons acting with union funding. The court rejected the Defender’s reliance on the difficulty of securing representation.

The court assessed the Pursuers' chances of success in their underlying claims against Thomas Cook at 40%, taking into account significant uncertainties on foreseeability, breach, and causation. It rejected the Pursuers' higher estimate of 80% and the Defender's lower estimate of 20%.

On divisibility of ATS, the court found insufficient evidence that ATS was necessarily a divisible condition and held that this issue should be considered within the overall assessment of causation and prospects.

The court dismissed the Pursuers' claims for loss of property investment income, finding no substantial evidential basis and noting the risk of double recovery. Similarly, it held that income protection payments received by one Pursuer were deductible from damages.

In quantifying damages, the court accepted that the Pursuers' symptoms fell within the "Severe" category of the Judicial College Guidelines for Chronic Pain, awarding £52,000 each for general damages. It found no past or future loss of earnings for one Pursuer but substantial loss for the other, based on expert evidence on likely career progression and retirement age.

Holding and Implications

DISPOSED OF

The court granted decree in favour of the first Pursuer in the sum of £24,762.80 and in favour of the second Pursuer in the sum of £1,159,094.74, with interest at the judicial rate from the date of decree until payment. The court reserved questions of expenses.

The decision directly compensates the Pursuers for the loss of a chance to pursue claims against their former employers due to the Defender’s admitted negligence. No new precedent was established, but the judgment reinforces established principles on loss of chance, limitation, and causation in the context of novel occupational illness claims.